General terms and conditions of Klemko Techniek B.V.
1. Definitions
KLEMKO KlemkoÒ Techniek B.V. in Soest
Buyer The counterparty which has reached an agreement with KLEMKO by accepting an offer to that effect.
2. Applicability
These terms and conditions apply to every offer and every agreement between KLEMKO and a counterparty which KLEMKO has declared is subject to these terms and conditions, insofar as the parties have not expressly deviated from these terms and conditions.
3. Quotes
The quotes provided by KLEMKO are non-binding; they are valid for 14 days unless stated otherwise. The prices specified in a quote are exclusive of VAT unless stated otherwise. Quotes can be revoked up to 5 working days after KLEMKO has received the counterparty's acceptance. In that case no agreement will have been concluded between the parties.
4. Delivery
The place of delivery is KLEMKO's warehouse in Soest. From the moment of delivery the goods are at the buyer's risk.
The cost of despatch and shipping will be borne by the buyer unless the net invoice amount for the shipment is equal to or more than €300,- and with length of freight(>1,75 meter) €600,-.
5. Obligation to accept
The buyer is obliged to accept the purchased goods at the moment when they are delivered to it or at the moment when they are made available to it under the agreement.
If the buyer refuses to accept the goods or fails to provide information or instructions required for the delivery, the goods will be stored at the buyer's expense and risk. In that case the buyer will be required to bear all additional costs, including in any case the cost of storage.
6. Delivery time
An agreed delivery time is not of the essence unless expressly agreed otherwise. In the event of late delivery the buyer must given KLEMKO written notice of default.
7. Part deliveries
KLEMKO is permitted to deliver sold goods in part deliveries. This does not apply if a part delivery has no independent value.
If the goods are delivered in part deliveries, KLEMKO is entitled to invoice for each part delivery separately.
8. Technical requirements etc.
If goods to be delivered in the Netherlands need to be used outside the Netherlands, KLEMKO is responsible for ensuring that the goods to be delivered comply with the technical requirements or standards stipulated by laws or regulations in the country where the goods need to be used if the use abroad has been specified when the sale is concluded.
All other technical requirements which the buyer stipulates for the goods to be delivered which deviate from the normal requirements must also be expressly specified by the buyer when the agreement is concluded.
9. Samples, models, specimens, pictures etc.
If KLEMKO has shown or provided a model, sample, specimen or picture, this is assumed only to have been shown or provided for illustrative purposes: the properties of the goods to be supplied can deviate from the sample, model or specimen or picture, unless it was expressly stated that the goods supplied would match the sample, model, specimen or picture shown or provided.
10. Right to amend
KLEMKO is entitled to deliver goods which differ from the goods described in the agreement in the following regards:
a. Colour and appearance
b. Weight and dimensions
If KLEMKO makes use of this right and delivers goods which differ significantly from the agreed goods, the buyer is entitled to dissolve the agreement. The buyer has this right for a period of one week after it discovers a significant difference or could reasonably have discovered it.
11. Guarantee
a) KLEMKO guarantees that the goods sold by it are free of defects in design, materials and manufacturing for a period of 2 years from delivery.
* The guarantee does not cover defects which occur in components which we have sourced from third parties insofar as that third party has not
provided a guarantee to KLEMKO, or those defects which are fully or partly the result of normal wear and tear.
b) If the guarantee specified in paragraph a) applies and the goods show a defect, KLEMKO is obliged to repair the goods or to supply a replacement within a reasonable period after the buyer has informed it of the defect.
c) Goods which need to be repaired must be returned to KLEMKO for repair.
d) KLEMKO can choose to replace the goods if repair is not possible.
e) The buyer can only demand replacement of the goods or dissolution of the agreement if:
KLEMKO has made two attempts to repair the same defect, these attempts have not achieved a satisfactory result, and the defect is serious enough to justify replacement or dissolution, or if the buyer shows that the goods have or have had so many defects that they do not comply with the agreement and that these defects justify replacement or dissolution.
f) The guarantee will lapse if the buyer causes damage through the incorrect handling of guaranteed goods. Incorrect handling also includes performing or commissioning unauthorised repairs to the goods and opening or commissioning the opening of the goods or failure to follow installation instructions, this at KLEMKO's discretion.
g) The buyer must prove that the goods showed a defect to which this guarantee applies within the guarantee period. The guarantee will lapse if the model or serial number of goods has been removed or altered.
12. Retention of ownership
a) KLEMKO retains ownership of all goods delivered by it to the buyer until the purchase price for all these goods has been paid in full.
b) The retention of ownership also applies to the claims which the seller may acquire against the buyer on the grounds of the buyer's failure to comply with one or more of its obligations with respect to the seller.
c) As long as ownership of the delivered goods has not passed to the buyer, the buyer may not pledge the goods or grant a third party any other right on them, subject to the provisions of paragraph h) of this article.
d) The buyer is obliged to keep the goods supplied with retention of ownership with the requisite care and as the identifiable property of the seller.
e) The buyer is obliged to properly insure the goods for the duration of the retention of ownership against fire, explosion and water damage, and against theft, and to make the policies for this insurance available to the seller at the first request.
f) If the buyer fails to comply with its payment obligations with respect to the seller or the seller has good grounds for fearing that it will fail to comply with those obligations, the seller is entitled to recover the goods delivered with retention of ownership or have them recovered from the buyer or from a third party. The buyer is obliged to fully cooperate with this on penalty of a fine of 10% of the sum owed by it per day or part thereof
g) Following recovery the buyer will be credited with the market value, which can never be higher than the original purchase price, less the costs incurred for the recovery.
h) The buyer is permitted to sell and assign the goods delivered with retention of ownership to third parties as part of its normal business activities. In the event of sales on credit the buyer is obliged to stipulate a retention of ownership to its customers based on the provisions of this article.
i) The buyer undertakes not to assign or pledge claims which it has against its customers to third parties without the seller's prior written permission.
j) If third parties wish to establish or enforce any right relating to the goods delivered with retention of ownership, the buyer is obliged to inform KLEMKO of this as soon as can reasonably be expected.
k) The buyer undertakes at KLEMKO's first request:
- to pledge all the buyer's claims against insurers with regard to the goods delivered with retention of ownership to KLEMKO in accordance with Civil Code section 3:239 as further surety for KLEMKO's claims against the buyer.
- to pledge the claims which the buyer acquires against its customers where selling on goods delivered with retention of ownership to KLEMKO in accordance with Civil Code section 3:239;
- to cooperate with all reasonable steps which KLEMKO wishes to take to protect its retention of ownership with regard to the goods and which do not unreasonably impede the buyer in its normal business activities.
l) KLEMKO hereby retains now for then the rights of pledge as described in Civil Code section 3:237 on delivered goods of which ownership has transferred to the buyer as a result of payment and which are still in the buyer's possession as further surety for claims which KLEMKO may have against the buyer on any grounds insofar as these are not included in Civil Code section 3:92 paragraph 2.
13. Defects, complaint periods
The buyer must inspect the purchased goods or have them inspected on delivery, or as soon as possible thereafter. The buyer must thereby check the following in order to determine whether the delivered goods comply with the agreement:
- whether the correct goods have been delivered;
- whether the quantities of the delivered goods match the agreed quantities;
- whether the delivered goods meet the agreed quality requirements or - in the absence of these - the requirements which can be stipulated for normal use or trade purposes.
If visible defects are found, the buyer must notify these to KLEMKO by written notification with recorded delivery within 8 (eight) working days;
The buyer must notify invisible defects to KLEMKO by written notification with recorded delivery within eight working days of their discovery, and within one year of delivery.
14. Price adjustments
If KLEMKO agrees a particular price with the counterparty, KLEMKO is nonetheless entitled to increase the price. KLEMKO may charge the price which applies according to its price list in force at the time of delivery, provided that the price adjustment is not more than 25% above the original price.
KLEMKO is in any case entitled to adjust the price in the event of an increase in a statutory price-determining factor.
15. Cash on delivery
KLEMKO reserves the right to deliver on a COD basis, at KLEMKO's discretion. If the buyer refuses the COD delivery, the buyer is nonetheless obliged to reimburse KLEMKO for all resultant costs.
16. Payment
Payment must be made within 30 days of the date of invoicing by transferring the sum owed to one of KLEMKO's bank accounts. After 30 days following the date of invoicing the buyer is in default; the buyer is liable for interest on the amount due from the moment of default which is equal to the statutory interest supplemented with two percent.
In the event of the buyer's liquidation, bankruptcy or payment moratorium, the buyer's obligations will become payable immediately.
17. Allocation of payments
Payments made by the buyer will also serve to settle the interest and costs owed in the first instance and the payable invoices which have been due longest in the second instance, even if the buyer indicates that the payment relates to a later invoice.
18. Collection costs
If the buyer is in breach of contract or in default in its compliance with one or more of its obligations, all reasonable extralegal costs to obtain compliance will be borne by the buyer. The buyer is in any case required to pay:
- for the first €2,500,- : 15% (with a minimum of €40,-)
- for the additional amount of €2.500,- : 10%
- for the additional amount up to €5.000,- : 5%
- for the additional amount up to €190.000,- : 1% and
- for the additional amount above this : 0,5% (with a maximum of €6.775,-)
If KLEMKO shows that it has incurred higher costs which were reasonably necessary, these will also qualify for reimbursement.
If the buyer is in breach of contract or in default in its compliance with one or more of its obligations, it is liable to reimburse KLEMKO for the legal costs incurred by KLEMKO in all courts in accordance with the billing rate of the Netherlands Bar Association, except insofar as the buyer shows that these are unreasonably high.
19. Liability
The liability as specified in the article entitled 'Guarantee' in these terms and conditions will apply to defects in delivered goods.
With regard to additional services, KLEMKO's liability is limited to an amount equal to the invoice amount.
This limitation does not apply if the loss is attributable to intent or gross negligence on the part of KLEMKO or its senior employees.
In all cases KLEMKO's liability is limited to a maximum amount of € 500,000 (five hundred thousand euro) per event.
20. Settlement of disputes
Contrary to the legal rules for the competence of civil courts, all disputes between the buyer and KLEMKO will be settled by the competent court in Utrecht. However KLEMKO remains entitled to summons the buyer before the court which is competent under the law or international convention.
During a period of one month after KLEMKO has invoked this provision in writing, the buyer has the right to opt for settlement of the dispute by the civil court which is competent under the law or international convention.
21. Choice of law
All agreements between KLEMKO and its counterparty are governed by Dutch law.
22. Amendment
KLEMKO is entitled to make amendments to these terms and conditions. These amendments will take effect on the amendment implementation date. KLEMKO will notify the amended terms and conditions to the buyer in good time. If no amendment implementation date has been notified, amendments will take effect with respect to the buyer as soon as it has been notified or has become aware of the amendment.
Deposited with the registry of the district court in Utrecht on 9 November 2018 under number 256/2018.
